New Cingular Wireless PCS, LLC v. Town of Fenton et al

Filing 37

JUDGMENT: Entered in favor of New Cingular Wireless PCS, LLC and against Town of Fenton, and the Zoning Board of Appeals of Fenton in accordance with the # 36 Memorandum-Decision and Order of Magistrate Judge Andrew T. Baxter. (mae)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
JUDGMENT IN A CIVIL CASE
_____________________________________________________________________
NEW CINGULAR WIRELESS PCS, LLC
Plaintiff
vs.

CASE NUMBER: 3:11-CV-510
(ATB)

TOWN OF FENTON and ZONING
BOARD OF APPEALS OF FENTON
Defendants
_____________________________________________________________________
Decision by Court. This action came to hearing before the Court. The issues have
been heard and a decision has been rendered.
IT IS ORDERED AND ADJUDGED that plaintiff’s motion for judgment on the pleadings
is GRANTED.
IT IS DECLARED that the defendants, in denying plaintiff's zoning use variance,
violated the Telecommunications Act of 1996 ("TCA"), 42 U.S.C., §§ 332(c)(7)(B)(iii);
TCA, 42 U.S.C., § 332(c)(7)(B)(i)(II); and N.Y.C.P.L.R., Article 78.
IT IS FURTHER ORDERED AND ADJUDGED that the Zoning Board of Appeal's denial
be VACATED; the defendants promptly approve plaintiff's zoning use variance and
grant and issue any and all other permits as may be required by plaintiff to place,
construct and operate and allow plaintiff to construct and operate the proposed facility
at the proposed site; and it is further ORDERED that the court will retain jurisdiction
until such time as all required permits have been issued to plaintiff.
All of the above pursuant to the Memorandum-Decision and Order of the Honorable
Magistrate Judge Andrew T. Baxter, dated the 4th day of January, 2012.
DATED: January 4, 2012

s/ Melissa Ennis
Melissa Ennis, Deputy Clerk